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Hearing April 14 on IBM's Motion to Toss Most of SCO's "Allegedly Infringing Material"
Thursday, March 23 2006 @ 08:19 AM EST

There is a hearing set on IBM's motion to toss out the bulk of SCO's list of allegedly misused material. It's set for April 14 at 3 PM. Here's the Pacer notation:
655 - Filed & Entered: 03/22/2006
Notice of Hearing on Motion
Docket Text: NOTICE OF HEARING ON MOTION re: [619] Defendant's MOTION to Limit SCO's Claims Relating to Allegedly Misused Material: Motion Hearing set for 4/14/2006 at 03:00 PM in Room 220 before Magistrate Judge Brooke C. Wells. (jwd, )

So let's synchronize our watches. This is an important hearing to attend, if you can, because there may be portions of the transcript sealed, since the Reply Memorandum by SCO is sealed. Also, it should be fascinating to get at least a glimpse of what SCO has on that list.

In other Pacer activity, IBM and SCO have stipulated that IBM can have more time to file its Reply Memorandum in Further Support of Motion to Limit SCO's Claims Relating to Allegedly Misused Material. This is IBM's response to SCO's sealed opposition memo. The new deadline is April 4, 2006. SCO's sealed Memorandum in Opposition is number 643 on the Docket list.

Also, Judge Brooke Wells has signed the proposed Order [PDF] submitted by the parties regarding the minor shift in the discovery schedule.

Here's the stipulation regarding IBM getting more time, thanks once again to Steve Martin:

***********************

SNELL & WILMER L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
Nathan E. Wheatley (9454)
[address]
[phone]
[fax]

CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address]
[phone]
[fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THE SCO GROUP, INC.,
Plaintiff/Counterclaim-Defendant,
v.

INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Defendant/Counterclaim-Plaintiff.
STIPULATION AND JOINT MOTION
RE BRIEFING

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

1

The parties, through their counsel of record, hereby stipulate and jointly move the Court for an Order extending the deadline for IBM to file its Reply Memorandum in Further Support of Motion to Limit SCO's Claims Relating to Allegedly Misused Material. IBM's reply memorandum will be filed and served on or before April 4, 2006. The parties submit herewith a proposed form of order confirming this deadline.

DATED this 21st day of March, 2006.

Snell & Wilmer L.L.P.
Alan L. Sullivan
Todd M. Shaughnessy
Amy F. Sorenson

CRAVATH, SWAINE & MOORE
Evan R. Chesler
David R. Marriott

By /s/ Todd M. Shaughnessy
Counsel for Defendant International
Business Machines Corporation

DATED this 21st day of March, 2006.

HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James

BOIES, SCHILLER & FLEXNER
Edward Normand

By /s/ Edward Normand
Counsel for Plaintiff
(e-filed with permission from counsel)

2

CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of March, 2006, a true and correct copy of the foregoing was and was sent by U.S. Mail, postage prepaid, to the following:

Brent O. Hatch
Mark F. James
HATCH, JAMES & DODGE, P.C.
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]

Robert Silver
Edward Normand
BOIES, SCHILLER & FLEXNER LLP
[address]

/s/ Todd M. Shaughnessy

6

  


Hearing April 14 on IBM's Motion to Toss Most of SCO's "Allegedly Infringing Material" | 386 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: Wol on Thursday, March 23 2006 @ 08:54 AM EST
and other smelling pistakes here

Cheers,
Wol

[ Reply to This | # ]

Off topics here
Authored by: Wol on Thursday, March 23 2006 @ 08:56 AM EST
Whoopee - got them both

Cheers,
Wol

[ Reply to This | # ]

Hearing April 14 on IBM's Motion to Toss Most of SCO's "Allegedly Infringing Material"
Authored by: Anonymous on Thursday, March 23 2006 @ 09:00 AM EST
tick tick tick

[ Reply to This | # ]

Sealed transcript of public hearing?
Authored by: shingebis on Thursday, March 23 2006 @ 09:20 AM EST
I think this is the first time in this case that the possibility of sealing the
transcript of a court hearing has been raised, and it doesn't make an awful lot
of sense to me. How does it work? Presumably there's nothing to stop people
reporting on the whole thing (because there's no way to know exactly what will
be sealed until the transcript arrives in several weeks' time), so it just means
that certain (cough) journalists can make wild inaccurate claims that can't be
refuted.

[ Reply to This | # ]

Hearing Vs Brief
Authored by: Anonymous on Thursday, March 23 2006 @ 09:20 AM EST
Reading through this, it would jump out at me that the reply brief versus the
date of the hearing itself are not aligned. I realize that this is the law we
are talking about so normal reality doesnt apply, but one would think the
real-life verbal hearing on the subject would make IBM's reply brief (due almost
two weeks later) irrelevent.

---
Clocks
"Ita erat quando hic adventi."

[ Reply to This | # ]

How will IBM recoup losses?
Authored by: seraph_jeffery on Thursday, March 23 2006 @ 09:23 AM EST
I suspect that this means now that the SCO heirarchy has milked this for all
it's worth, and have become personally wealthy, they'll be ready to ditch soon.
How will IBM recoup their losses from all this harrassment? Is there anything
left in the SCO legal fund?

[ Reply to This | # ]

Can the sealing of the reply be challenged?
Authored by: Jaywalk on Thursday, March 23 2006 @ 09:25 AM EST
This is an important hearing to attend, if you can, because there may be portions of the transcript sealed, since the Reply Memorandum by SCO is sealed.
I've been wondering if IBM could challenge SCO sealing the Reply Memorandum. Supposedly it's just a list of line numbers and code, but I believe SCO's already gone public with their claims before, and they were met with general derision and contempt. If SCO is sealing the records just to keep from being exposed to another round of bashing, that's not a valid reason to seal the record, is it?

And even if it is, aren't they supposed to file a redacted version that we can make fun of? Work's been stressful lately and I need the laughs.

---
===== Murphy's Law is recursive. =====

[ Reply to This | # ]

Feeding Time
Authored by: edal on Thursday, March 23 2006 @ 09:48 AM EST
First step in the Nazgul playing with their food, they've booked the table
<g>. Get the popcorn in.

Ed Almos

[ Reply to This | # ]

Hearing April 14 on IBM's Motion to Toss Most of SCO's "Allegedly Infringing Material"
Authored by: blacklight on Thursday, March 23 2006 @ 11:10 AM EST
I could not understand why IBM did not ask for SCOG's "evidence" to be
tossed out long ago. Now I think I do: had IBM made that motion earlier, SCCOG
could have successfully opposed it by claiming that SCOG's discovery period is
not over and that IBM's motion is thus premature. Now that SCOG's discovery
period is over and that SCOG's "evidence" is clearly is the best it
could accumulate in that period, IBM's teardown process can begin unmolested by
SCOG's objections.

---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

I can see the spin now. . .
Authored by: Anonymous on Thursday, March 23 2006 @ 11:18 AM EST
Well knowing SCO's PR machine, assuming that IBM gets what it asked for, namely
2/3 of SCO's claims being thrown out immediately simply for being too vague and
unsupported, I already know how SCO will spin it:

"Court upholds 91 claims of mis-use of SCO technology by IBM"

Or somesuch.

Lol. Forgetting the fact that this motion and hearing don't address whether the
other 91 claims have any merit - simply that the 201 claims IBM is asking to
have dismissed are simply to0 vague and undocumented to even *be* considered by
the court.

Gotta love spin. . .

[ Reply to This | # ]

Argument not seen before on Groklaw
Authored by: Anonymous on Thursday, March 23 2006 @ 12:41 PM EST
From from a year 2000 newsgroup post:

Unix and Linux will fight each other for supremacy over the next 18 months but only one can survive, according to Caldera Systems.

The statement follows the Linux distributor's decision to acquire the Santa Cruz Operation's (SCO's) Unix business in August for an estimated bargain basement price of $130m. The agreement includes rights to SCO's Unix SVR5 source code and the UnixWare and OpenServer operating systems (OSs).

The deal was expected to close in October, but will now be completed between 5-10 December.

Edgie Donakey, Caldera's vice president and chief of staff, said that the two companies were currently reselling each other's products, but that the aim over the next six months or so was to offer two new OSs.

One will be based on the Linux kernel and will include two so-called personalities that run OpenServer and Linux applications, while the other will be based on the UnixWare kernel and run Linux and UnixWare applications.

But Donakey claimed that only one of the kernels would remain within the next 18 months.

"It will not be a two kernel situation into the future. As the Linux kernel develops and the Unix kernel is open sourced, the solution will be whichever works the best. It will be the survival of the fittest. People are not doing a lot of development on the Unix kernel these days because people see Linux as exciting and the future," he said.

He added that Drew Spencer, Caldera's chief technology officer, and the supplier's legal department were now looking at the ramifications of licensing the Unix kernel and UnixWare personality under a GNU General Public Licence - one of several ways to license open source software.

This means that the source code would be made available to the open source community for free to allow them to tinker with it, but that any changes would have to be handed back so that others can benefit from them.

As a result, the aim is to encourage kernel and application developers to work on the code and to "give them added insight into the way the OS works".

Maybe Caldera has given a lot of 'go-aheads'

----------------
I'm IMANAL - I'M Absolutely Not A Lawyer - Just didn't login

[ Reply to This | # ]

  • Interesting - Authored by: so23 on Thursday, March 23 2006 @ 06:39 PM EST
    • Interesting - Authored by: Anonymous on Friday, March 24 2006 @ 10:48 AM EST
      • Interesting - Authored by: Anonymous on Friday, March 24 2006 @ 01:02 PM EST
Hearing April 14 - A Question
Authored by: rsteinmetz70112 on Thursday, March 23 2006 @ 01:11 PM EST
After realizing that this motion is before Magistrate Judge Wells I began to
wonder whether she can rule on this matter. It would seem that this type of
motion is more substantive than procedural, which is where I thought the line
between the Magistrate and the Judge was drawn.

I am confused about why such a major motion which could eliminate much of SCOG's
case is being heard by Magistrate Wells and not Judge Kimball.

Perhaps someone can enlighten me.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Hearing April 14 on IBM's Motion to Toss Most of SCO's "Allegedly Infringing Material"
Authored by: Anonymous on Thursday, March 23 2006 @ 03:04 PM EST
Portion of SCO list:

Little blinking light on computer indicating hard disk activity -- thats
ours...

"Blue screen of death" -- that's ours. Microsoft stole it, but that's
another case...

Alphabet -- that's ours.

Recipe for chicken fried steak -- ours...

[ Reply to This | # ]

How tSCOg will spin this:
Authored by: Anonymous on Thursday, March 23 2006 @ 10:46 PM EST
I can hear the spin from Lindon and Redmond on this now:

"If there is no infringing code; how can some be thrown out?"

It's late.....

[ Reply to This | # ]

Speculation on SCOX/BSF's Tactics Opposing IBM's Motion
Authored by: Dave23 on Thursday, March 23 2006 @ 11:55 PM EST
Re-reading IBM's Memorandum in Support (See link in PJ's main article above) I noticed this part of the argument:
Item Nos. 271 and 294 of the Final Disclosures illustrate the problem. Item No. 271 claims that "AIX and Dynix/ptx patented technologies, based on UNIX System V, were improperly released for the benefit of, and use by, the Linux development community in developing Linux." SCO does not identify a single version, file or line of Unix System V, AIX, Dynix or Linux technology that IBM is alleged to have misused. Instead, SCO merely attaches 34 patents. None of these 34 patents lists any versions, files or lines of code. There is, therefore, no way of telling what, if any, Unix System V, AIX, Dynix or Linux technology SCO contends was misused. Similarly, SCO’s Item No. 294 alleges that IBM has engaged in "[e]xtensive use of ptx programming experience (and a fortiori exposure to UNIX System V) in creating numerous Linux kernel patches". In support of this claim, SCO attaches a computer disk containing 33,000 single-spaced pages of proposed code contributions. Nowhere does SCO identify with specificity a single version, file or line of Unix System V, AIX, Dynix or Linux code. Here again, IBM is left to guess as to SCO’s claim.
This quotation does illuminate a couple of SCOG's sealed claims, and confirms the idea that at least part of SCOG's claims are of the "all your code — and 'methods and concepts' and UNIX programming experience(!), and IBM's patented material(!!) — are controlled by us" or "contagion" theory of the old AT&T/Novell/Santa Cruz-IBM contract.

IBM, in its support of its motion, argues in a way that presumes that the contract has a settled meaning — and, truthfully, the court has used wording that is consistent with their interpretation. On the other hand, SCOG/BSF continue to wander down another path, their argument being that no explicit ruling has been made on the meaning of the contract with respect to extent of control. It is easy to impute that this conflicting interpretation of what the contract means involves about two-thirds of SCOG/BSF's claims.

I am convinced that SCOG/BSF will not relinquish the "contagion" theory until an explicit ruling is made on the interpretation of the contract. Thus, I infer that their opposition argues, among other things, that IBM's motion should be denied because (1) reference to the contract's meaning will be required when determining whether the claims are adequately specific, and to interpret the contract will require a dispositive ruling; (2) the Magistrate Judge may not rule in favor of IBM's motion because the question at hand is beyond her purview; (3) if Judge Wells does rule against SCOG/BSF on the motion, SCOG/BSF will appeal immediately to Judge Kimball; (4) SCOG/BSF will remind Judge Kimball that dispositive motions were to be deferred until the end of Discovery; (5) even if Judge Kimball decides to make a ruling on the motion after Discovery is over, SCOG/BSF will argue that there are enough disputed facts relating to the interpretation of the contract that a jury will be required to determine the truth of the conflicting claims; (6) if Judge Kimball grants PSJ's based on contract interpretation, SCOG/BSF will request an interlocutory appeal (if they can afford it).

IBM's reply will be interesting reading, if it is not sealed or too heavily redacted. Until now, SCOG/BSF and IBM have been "talking past" each other, and will continue to do so until the Court puts the issue to rest. The implicit nod is with IBM — we have seen the dicta from Judge Kimball when he defered IBM's early PSJs. Will IBM rely on that dicta in its reply in a way that will telegraph SCOG/BSF's opposition argument(s). We may get a mess of tea-leaves to read in early April.

SCOG/BSF's approach is and remains: delay the collapse of the SCOniverse "wave function" for as long as possible. Argue that a decision on the meaning of the contract must be made; that Magistrate Judge Wells is (respectfully) not competent to make that interpretation; that the decision on the contract is not ripe for Judge Kimball to make it; that only a jury can decide the proper interpretation of the contract.

Now, I am not a lawyer, and IBM have very good ones. SCOG/BSF may have decided not to make a stand here; but if they have, and their reply was of this type, then personally, I think SCOG/BSF may have a chance to force a deferral in IBM's motion until Discovery is completely over with, and motions for PSJ are fully briefed.

I believe this: SCOG/BSF shall give up their "contagion" theory in arguments only when they get an adverse ruling from Judge Kimball. They cannot give it up unless told directly and expressly that it is wrong, because its validation is absolutely necessary if they might get a substantial, unmitigatible, payout. (IBM has other defenses for the more specific of the SCOG claims, and, as anyone who has been following Groklaw knows, the "contagion" theory of itself, however galling, does not hurdle IBM's other general defenses.) I would not be surprised if SCOG/BSF request an interlocutory appeal on this matter. It practically is their case. Without their "contagion" theory, SCOG/BSF's contract case is cooked.

IANAL

---
Gawker

[ Reply to This | # ]

No surprise: outbound port 25 considered harmful
Authored by: Anonymous on Friday, March 24 2006 @ 02:36 PM EST
> I could understand blocking inbound ftp but can not
> understand blocking outbound email. The logic or lack
> there of of government I will never comprehend.

Your list of "expected/unexpected" behaviors suggests that you aren't
very familiar with the common Internet protocols and the reasons for locking
them down at firewalls and gateways. Please trust me when I tell you that
blocking outbound port 25 is one of the smartest things the library's IT group
could do.

[ Reply to This | # ]
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